Cases ReportedSupreme Court Cases

Kerala liquor ban: Revisiting res extra Commercium & police power: A year ago, the Supreme Court upheld the Kerala Government’s Abkari Policy of 2014-2015 that prohibited the sale and service of alcohol in all public places except bars and restaurants in five-star hotels. The plea that this amounted to an unreasonable classification and thereby violated Article 14 was rejected. While discussing the nature of the rights of people trading in alcohol, the Supreme Court wrongly applied the concept of “res extra commercium” yet again. This article seeks to highlight the consistent error in failing to understand the origin and nature of the Latin phrase res extra commercium and its consequent erroneous application. The article also submits that the plea under Article 14 was rejected without any reasoning. [Kerala liquor ban: Revisiting res extra Commercium & police power by Arvind P. Datar and Rahul Unnikrishnan, (2017) 3 SCC (J-1)]

Anil Divan : A Counsel Nonpareil: An Obituary to Anil Divan, Senior Advocate, Supreme Court of India, who passed away on 20-3-2017. [Anil Divan: A Counsel Nonpareil: An Obituary, (2017) 3 SCC (J-7)]

R.K.P. Shankardass : Gentleman of The Indian Bar: An Obituary to R.K.P. Shankardass, Senior Advocate, Supreme Court of India and an esteemed former member of the SCC Editorial Board, who passed away on 10-3-2017. [R.K.P. Shankardass : Gentleman Of The Indian Bar: An Obituary, (2017) 3 SCC (J-10)]

T.M. Andhyarujina : Servant Of The Constitution: An Obituary to T.M. Andhyarujina, Senior Advocate, Supreme Court of India, former Solicitor General of India, Advocate General of Maharashtra and an esteemed member of the SCC Editorial Board, who passed away on 28-3-2017.[T.M. Andhyarujina : Servant of the Constitution, An Obituary, (2017) 3 SCC (J-12)]

M.N. Krishnamani : Cardinal Of The Bar: An obituary to Dr M.N. Krishnamani, Padam Shri, Senior Advocate, Supreme Court of India, Former President, SCBA, who passed away on 15-2-2017. [M.N. Krishnamani : Cardinal Of The Bar, An Obituary, (2017) 3 SCC (J-14)]

Associations, Societies and Clubs — Body discharging public functions but not amounting to “State” — BCCI — Reform in structure and organisation of BCCI as per directions of Court: As per order in Cricket Assn. of Bihar, (2017) 2 SCC 333, replacement of office-bearers of BCCI with Committee of Administrators, directed and pursuant to directions of Supreme Court, Amicus Curiae suggested names of members of Committee of Administrators in sealed cover, hence, pending deliberations on names suggested, documents to be kept in sealed cover and CEO who is looking after functioning of BCCI directed to continue to do as an interim measure. [BCCI v. Cricket Assn. of Bihar, (2017) 3 SCC 696]

Civil Procedure Code, 1908 — Ss. 33, 2(2), 100, Or. 7 Rr. 1(g), 7, 1(e) & 3, Or. 6 Rr. 1 & 2, Or. 14 Rr. 2 & 3, Or. 20 Rr. 5, 6 & 9 and Or. 1 Rr. 3, 10(2) & 9: Judgment and decree granting relief with respect to property other than that described in plaint is unsustainable, more so when that property admittedly stood in the name of another person, who was not party to suit nor was any relief claimed against him. [Arulmigu Chokkanatha Swamy Koil Trust v. Chandran, (2017) 3 SCC 702]

Consumer Protection — Consumer/Consumer Dispute/Locus Standi — Generally: A trust is not a person under S. 2(1)(m) of Consumer Protection Act, 1986. Hence, it is not a consumer within the meaning of S. 2(1)(d) of that Act. Consequently, a trust cannot be a complainant and cannot file a consumer dispute under the provisions of Consumer Protection Act. [Pratibha Pratisthan v. Canara Bank, (2017) 3 SCC 712]

Constitution of India — Art. 129 — Contempt of Supreme Court — Power and jurisdiction — Exercise of, for securing presence of contemnor: Due to failure of a sitting Judge of Calcutta High Court to appear before Supreme Court even after service of notice in suo motu proceedings, in absence of any alternative mode, bailable warrant to be served by Director General of Police, directed. [C.S. Karnan, In Re, (2017) 3 SCC 715]

Criminal Procedure Code, 1973 — Ss. 235(2) and 354(3) — Death penalty — Delhi Gang Rape case of December 2012: As non-consideration of aggravating and mitigating circumstances of each accused before awarding death penalty resulting in violation of S. 235(2) CrPC alleged by accused while imposition of death penalty on all accused, Supreme Court ensured compliance with S. 235(2) CrPC by granting opportunity to accused to adduce mitigating circumstances. Consequently, directions issued to authorities concerned to facilitate convicted accused in submitting their mitigating circumstances in the form of affidavit and place it before Supreme Court. As affidavit submitted did not contain certain material particulars, opportunity granted to file further affidavit. Necessity of Jail Authorities to file report on conduct of accused facing death penalty while in custody, also emphasized. [Mukesh v. State (NCT of Delhi), (2017) 3 SCC 717]

Family and Personal Laws — Guardians and Wards — Custody of Child/Minor — Welfare of child prime consideration: Girl aged 15 yrs, when intellectually and emotionally mature enough to understand and decide whose custody (mother or father) would be in her best interest, her preference should be given due weight. Court should desist from passing order for custody contrary to her will which may give rise to tormenting and disturbing experience in her mind. [Jitender Arora v. Sukriti Arora, (2017) 3 SCC 726]

Administrative Tribunals Act, 1985 — Ss. 2(a) and 3(q) — Inapplicability to members of Armed Forces — Member of General Reserve Engineer Force (GREF) of Border Roads Organisation: 1985 Act does not apply to any member of Armed Forces. Thus, High Court was justified in holding that appellant, member of GREF which is an integral part of Armed Forces within meaning of Art. 33 of the Constitution could not have invoked jurisdiction of CAT. In absence of lack of inherent jurisdiction to deal with issue, judgment rendered by CAT in appellant’s favour is a nullity having no existence in law. It is ultra vires powers of court passing decree hence, is void and not merely voidable decree. [Mohd. Ansari v. Union of India, (2017) 3 SCC 740]

Constitution of India — Arts. 163 & 189 and Arts. 74 & 100 — Discretionary power of Governor to appoint Chief Minister (CM), who may then form Government: To determine whether leader of post-poll alliance appointed as CM and invited by Governor to form State Government enjoyed support of requisite MLAs, directions for immediate floor test issued and date for the same also fixed. Election Commission directed to complete necessary formalities for holding floor test. [Chandrakant Kavlekar v. Union of India, (2017) 3 SCC 758]

Penal Code, 1860 — Ss. 302/120-B, 364/120-B and 201/120-B — Murder trial — Criminal conspiracy leading to abduction and murder — Circumstantial evidence: In this case of criminal conspiracy leading to abduction and murder, as overall circumstances and recoveries made, establishing guilt of appellant-Accused, their conviction under Ss. 302/120-B, 364/120-B and 201/120-B IPC, confirmed on the basis of circumstantial evidence. [Kishore Bhadke v. State of Maharashtra, (2017) 3 SCC 760]

Penal Code, 1860 — Ss. 63 to 65 — Uphaar Cinema case: Substitution of sentence by fine, not provided for in IPC. [Assn. of Victims of Uphaar Tragedy v. Sushil Ansal, (2017) 3 SCC 788]

Motor Vehicles Act, 1988 — Ss. 166 and 168 — Compensation — Heads of compensation — Loss of consortium to spouse — Scope and significance of: Consortium is right of spouse to company, care, help, comfort, guidance, society, solace, affection and sexual relations with his/her mate. Even children of deceased are entitled to award of compensation for loss of love, care and guidance. This emotional aspect has nothing to do with expected lifespan. [Bhogireddi Varalakshmi v. Mani Muthupandi, (2017) 3 SCC 802]

Cases ReportedSupreme Court Cases

Constitution of India — Art. 136 — Grant/Dismissal of SLP — Dismissal of SLP — When warranted: Supreme Court most focus on significant and important cases. Exercise of power while entertaining SLPs is purely discretionary. Availability of alternative remedies and mounting pendency of cases coupled with relative insignificance of legal injury, are factors to be weighed while entertaining SLPs. [Reena Suresh Alhat v. State of Maharashtra, (2017) 3 SCC 119]

Constitution of India — Arts. 213 & 123 and Arts. 249(3), 250(2), 357, 358(1) & 359(1-A) — Obliteration of rights, privileges, obligations or liabilities under an Ordinance upon its ceasing to operate: Laying of Ordinance before the legislative is mandatory. Repromulgation of Ordinances is constitutionally impermissible. Upon an Ordinance ceasing, no rights, privileges, obligations or liabilities survive except where pubic interest or constitutional necessity is demonstrated. [Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1]

Constitution of India — Arts. 226 and 32: As interim order have serious consequences on main relief sought i.e. private university (till date) would henceforth be treated by UGC as State University, said interim order stayed and status quo directed to be maintained till writ petition is disposed of by High Court. [University Grants Commission v. Maharishi Mahesh Yogi Vedic Vishwavidyalaya, (2017) 3 SCC 114]

Criminal Procedure Code, 1973 — Ss. 239 and 482 and S. 227 — Discharge — Proper forum for: Appropriate application under S. 239 must be filed before Magistrate. It is for Magistrate to consider contentions regarding discharge therein. [Umesh v. State of Kerala, (2017) 3 SCC 112]

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 — S. 14-B — Imposition of damages for default in payment of provident fund dues: Since presence or absence of mens rea and/or actus reus would be a determinative factor in imposing damages under S. 14-B and High Court or appellate authority or original authority found no mens rea and/or actus reus, respondent(s) could not be held liable under S. 14-B. [Provident Fund Commr. v. RSL Textiles (India) (P) Ltd., (2017) 3 SCC 110]

Land Acquisition Act, 1894 — Ss. 4(1) & 6 and 13-A: Once award is passed, there is no question of any correction in notification under S. 4(1) or declaration under S. 6. S. 13-A provides for correction of clerical mistakes in award and that too only within six months. There is no question of an award being passed in respect of a property, for which there is no notification under S. 4(1) and consequently, declaration under S. 6. [State of U.P. v. Abdul Ali, (2017) 3 SCC 108]

Limitation Act, 1963 — Art. 134 and S. 15 — Sale in execution of decree — “When sale becomes absolute”: Sale becomes absolute on termination of proceedings initiated to set aside order of confirmation of sale as per Or. 21 R. 92(1) CPC, not on mere passing of such confirmation order. [United Finance Corpn. v. M.S.M. Haneefa, (2017) 3 SCC 123]

Preventive Detention — Grounds of detention — Relevancy of/Validity of/Inconsistencies in/Defects in grounds: Where detention order is based on more than one grounds, independent of each other, detention order would survive even if one of the grounds is found to be non-existing or legally unsustainable. However, where detention order is founded on one composite ground it would be vitiated if such ground is found fault with. Further held, “grounds” are basic facts on which conclusions are founded which are different from subsidiary facts or further particulars of basic facts. [Gautam Jain v. Union of India, (2017) 3 SCC 133]

Tort Law — Negligence — Compensation — Quantification of, without material evidence and based on assumptions and presumptions: In this case of electrocution suffered by 8 yr old boy, which resulted in amputation of both arms, High Court was correct in holding that victim would have earned about Rs 30,000 p.m. as these conclusions are based on proper materials, hence, no interference therein called for. But award of compensation of (i) Rs 10,00,000 towards loss of companionship, life amenities/pleasure and happiness; (ii) Rs 10,00,000 for pain and suffering, mental distress, trauma and discomfort and inconvenience; (iii) Rs 10,00,000 towards attendant/nursing expenses; and (iv) Rs 5,00,000 for securing artificial/robotic limbs and future medical expenses, are on the higher side. There is no evidence to support award of compensation under these heads and such quantification is based on assumptions and presumptions. Entitlement for compensation under these heads is one thing and quantum of compensation under these heads is another thing, hence, sum reduced from Rs 1,25,00,000 to Rs 90,00,000 with 6% interest. [State of H.P. v. Naval Kumar, (2017) 3 SCC 115]

Cases ReportedSupreme Court Cases

Copyright Act, 1957 — Ss. 51, 14 and 55 — Infringement of copyright in copy-edited version of judgments published in Supreme Court Cases (SCC): Copyrights in copyedited versions of judgments published in Supreme Court Cases (SCC) as recognized and upheld in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1, affirmed by the directions to appellant-defendants to follow the law laid down in Modak case while publishing, selling and distributing the raw judgments of the Supreme Court with their own inputs. [Relx India (P) Ltd. (Formerly Reed Elsevier India (P) Ltd.) v. Eastern Book Co., (2017) 1 SCC 1]

Tort Law — Employees’ Compensation Act, 1923 — Ss. 30 and 4(1) (c)(ii) — Appeal to High Court — Interference with findings of facts by High Court — When permissible: When there is no perversity in findings of fact of authorities below, interference with findings of fact, impermissible in such circumstances. [Golla Rajanna v. Divl. Manager, (2017) 1 SCC 45]

Service Law — Retirement/Superannuation — Retiral benefits — Gratuity and pension: As there were no departmental proceedings initiated against respondent for alleged discrepancy in stock in store of Department which was noticed after more than five months of retirement of respondent nor any proceedings as envisaged under Art. 351-A resorted to, hence, no interference with impugned judgment affirming order of Single Judge of High Court directing release of remaining amount of pension and gratuity called for. [State of U.P. v. Dhirendra Pal Singh, (2017) 1 SCC 49]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — Ss. 13(2), 17 and 34 r/w S. 1(4) of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 — Jurisdiction of Debts Recovery Tribunal (DRT) where amount of debt due is less than Rs 10 lakhs: DRT has no original jurisdiction to entertain suit or application where debt is less than Rs 10 lakhs, but, it can exercise appellate jurisdiction in terms of S. 17 of 2002 Act even if amount involved is less than Rs 10 lakhs. In view of specific bar under S. 34 of 2002 Act, no civil court has jurisdiction to entertain any suit or proceeding in respect of any matter which a DRT or DRAT is empowered to determine the dispute under 2002 Act. Thus, civil court has no right to issue any injunction with reference to any action taken under 2002 Act or under 1993 Act. [State Bank of Patiala v. Mukesh Jain, (2017) 1 SCC 53]

Kerala General Sales Tax Act, 1963 (15 of 1963) — S. 5(2) — First sale of goods — When can be inferred — Second sale exemption — Entitlement to: For being considered as first sale of goods under S. 5(2), the following conditions are to be satisfied: (i) sale is of manufactured goods being other than tea; (ii) sale of the said goods is under a trade mark or brand name; and (iii) sale is by the brand name holder or the trade mark holder within the State. Further, the objective of S. 5(2) of KGST Act is to assess the sale of branded goods by the brand name holder to the market and the inter se sale between brand name holders is not intended to be covered by S. 5(2) of the KGST Act. In present case purported “first sale” was only a device to reduce tax liability, hence assessee not entitled to second sale exemption. [Kail Ltd. v. State of Kerala, (2017) 1 SCC 60]

Prevention of Corruption Act, 1988 — Ss. 19, 13, 7, 10, 11 and 15 — Sanction for prosecution: For IRS officer cadre controlling authority is Finance Minister of India and as such sanction for prosecution granted by him was valid sanction. Further held, fact that in administrative notings different authorities like CVC, DoPT had opined differently, is inconsequential since business of State being complicated, it has necessarily to be conducted through agency of large number of officials and authorities. Besides, ultimate decision to accord sanction was taken by Finance Minister who was the competent authority.Moreover, sanction was accorded after proper application of mind and at no point there was decision not to grant sanction so as to give decision to grant sanction colour of review. Opinion of CVC which was reaffirmed and ultimately prevailed in according sanction cannot be said to be irrelevant. [Vivek Batra v. Union of India, (2017) 1 SCC 69]

Contempt of Court — Civil Contempt — Interpretation/doubt as to order — Contempt petition — When can be considered as review petition to clarify such doubt: As dispute between the parties required determination of date from which interest was required to be paid in terms of court order which was omitted in said order, therefore, issue considered not under contempt jurisdiction but in review jurisdiction. [Dravya Finance (P) Ltd. v. S.K. Roy, (2017) 1 SCC 75]

M.P. Electricity Duty Act, 1949 (10 of 1949) — S. 3(1) — Term “processing” as used in definition of “mines” — Interpretation of: In Expln. (b) to S. 3(1) words, “crushing”, “treating” and “transporting” are words of narrower significance and the word “processing” used between these words should not be given a very wide meaning, for the legislative intent, is narrower. Further, the word “processing” would mean those processes with the help of hands or machineries connected and linked to mining activity and would not include process by which a new or different article other than the one which has been mined, is produced. Therefore, “processing” in the said context would mean activities in order to make the mineral mined marketable, saleable and transportable, without substantially changing the identity of the mineral, as mined. S. 3(1) prescribed different rates of duty depending on the purpose for which the electrical energy is sold and the “rate of duty as percentage of the electricity tariff per unit” for mines was specified as 40. Further, ferromanganese alloy manufactured by the appellant using the mineral manganese at its ferromanganese plant was an entirely different product from its mineral raw material (manganese ore) both physically and even chemically. Also, unlike manganese ore a ferromanganese alloy can never be found in the natural state and it has to be manufactured from the manganese ore and other minerals only. The same logic applied to copper concentrate also, as a different and distinct product comes into existence. Hence, conversion of mineral ores i.e. manganese ore to ferromanganese and copper ore to copper amounts to “manufacturing” and hence was liable to tariff applicable to manufacturing units. [Manganese Ore India Ltd. v. State of M.P., (2017) 1 SCC 81]

Penal Code, 1860 — Ss. 304-B and 498-A r/w S. 113-B, Evidence Act, 1872 — Dowry death — Presumption under S. 113-B — Invocation of: Mere factum of unnatural death in matrimonial home within seven years of marriage is not sufficient to convict accused under Ss. 304-B and 498-A. Only when prosecution proves beyond doubt that deceased was subjected to cruelty/harassment in connection with dowry demand soon before her death, presumption under S. 113-B can be invoked. [Baijnath v. State of M.P., (2017) 1 SCC 101]

Criminal Procedure Code, 1973 — Ss. 340 & 195 — Initiation of prosecution for perjury — Preconditions therefor: Mere fact that a contradictory statement was made in judicial proceeding is not by itself sufficient to justify prosecution for perjury. It must be established that such act was committed intentionally. [Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113]

Infrastructure Laws — Water and Water Resources — Interlinking of river projects/Networking of rivers — Sutlej- Yamuna Canal link — Sharing of river water by State of Punjab with State of Haryana: Haryana is constructing canal on its side by making huge investments but State of Punjab delaying in constructing canal in spite of valid agreements and decree under Art. 131 and orders of Supreme Court to complete it within specified time period, instead State of Punjab enacting the Punjab Termination of Agreements Act, 2004 to discharge itself of its obligations under said agreements and decree and final order of Supreme Court, hence, Punjab Act, held, invalid. [Punjab Termination of Agreement Act, 2004, In Re, (2017) 1 SCC 121]

Hindu Adoption and Maintenance Act, 1956 — S. 12(c) — Applicability: After vesting of undivided shares of other heirs in the said other heirs, adoption has no effect on such vested undivided shares. [Saheb Reddy v. Sharanappa, (2017) 1 SCC 142]